Madhya Pradesh High Court
Smt. Maharani And Ors. vs Krishna Kumar And Ors. on 4 April, 2008
Author: U.C. Maheshwari
Bench: U.C. Maheshwari
JUDGMENT U.C. Maheshwari, J.
1. This appeal is directed by the appellants / plaintiffs under Section 96 of the CPC being aggrieved by the judgment and decree dated 3rd February 1998 passed by the District Judge, Sagar in C.O. Suit No. 5-A/97, dismissing their suit for declaration and perpetual injunction.
2. Hereinafter for brevity the principal plaintiff late Smt. Maharani is being said to be the "principal-plaintiff" while the other parties are being said to be the appellants and the respondents respectively.
3. The facts giving rise to this appeal in short are that the principal plaintiff filed a suit for declaration and injunction against the respondents for declaration and perpetual injunction contending that she being illiterate widow of 90 years is suffering from deafness with weak eyesight. She has three sons namely Harish Chandra, Gotiram (the appellants) and Krishna Kumar, (the respondent No. 1) and one daughter the respondent No. 7. All the sons are residing separately. As per further averments of the plaint she is holding the agricultural land as Bhumiswami described in para 3-A, B and C (1) and C (2) in the plaint at village Mangela Jamanapurparasia and village Sagoni respectively. On account of her old age she was managing the aforesaid land of Jamanapurparasia through her son Gotiram while the land of Mangela through other son Harish Chandra. On dated 14.11.1991 she was at the residence of Gotiram while Gotiram had gone to village Rahali. In the mid night of the aforesaid date her son Krishna Kumar - the respondent No. 1 accompanied with his brother in law Gopal Prasad and sons Devendra Kumar, Surendra, the respondent No. 3 and 4 came there and told her that they have brought the bank official for taking her thumb impression on some papers to withdraw the deposited sum of his father the husband of the principle-plaintiff as he is in need of the money to marry his daughter and they took her to the residence of the respondent No. 1 where some persons were already present. In their presence without explaining anything her thumb impression were taken on some papers. She put the same under the aforesaid assurances for withdrawing the money of her husband from the bank. Thereafter, the respondent No. 1 again dropped her at the residence of the appellant No. 2.
4. Subsequently on dated 3.12.1991 Harish Chand - the appellant No. 1 went to Tahsil office Deori for some work where he came to know that the respondent No. 1 has got executed some sale deeds from the principal- plaintiff regarding her land, then on returning home he asked the principal- plaintiff in this regard. She was shocked and denied the execution of such documents describing the above mentioned event in which she put her thumb on some papers. She directed him to inquire and collect all information in this regard, on which the appellant No. 1 went to Sub Registrar Office and on verification it was revealed that the respondent No. 1 to 5 with the assistance of some other persons got executed the following registered deeds from her or on her behalf:
(a) Sale deed dated 14.11.1991, in respect of the land of village Mangela bearing survey No. 181 to 183, 184 and 193 area 0.12, 0.15, 0.23 and 0.02 hectares respectively by showing the payment of consideration of Rs. 65,000/-got executed in favour of Smt. Radherani, the respondent No. 2, the wife of respondent No. 1.
(b) The second sale deed dated 14.11.1991, in respect of the land of village Jamunapurparasia bearing survey No. 294 and 370 area 0.83 and 0.25 hectares respectively by showing the payment of consideration Rs. 33,000, got executed in favour of Devendra Kumar, the respondent No. 3, the son of respondent No. 1.
(c) The third sale deed dated 14.11.1991 in respect of the land of village Sagoni bearing survey No. 228, 280 and 319 area 2.19, 1.24 and 2.99 hectares by showing the payment of consideration Rs. 1,30,000/-got executed in favour of Surendra Kumar, respondent No. 4, the son of the respondent No. 1.
(d) The fourth sale deed dated 22.11.1991 in respect of the land of village Sagoni bearing survey No. 320, 2, 91, 135, 174, 213, 221, 321, 32 area 2.79, 0.35, 0.01, 0.01, 0.12, 0.01, 0.04, 0.11 and 0.46 hectares got executed by showing the payment of consideration of Rs. 90, 000/- in favour of Ramswaroop, aged 10 years respondent No. 5, the minor son of respondent No. 1. As alleged it was executed on dated 22.11.1991 in the office of Registrar, Deori by Krishna Kumar, the respondent No. 1 on the strength of a registered Karandanama (power of attorney) as alleged executed by the principle plaintiff on dated 19.11.1991.
5. On the strength of the aforesaid sale deeds the land was also got mutated in the name of concerned respondents respectively.
6. As per further averments the aforesaid all the sale deeds and the Karandanama are ab initio void and illegal documents. The principle-plaintiff never intended to sell the land to her son - respondent No. 1 or his family members to respondent No. 2 to 5. She never executed aforesaid any of the sale deed or Karandanama after receiving the mentioned consideration in such deeds. The possession of the land was also not given to the concerned respondents. The respondent No. 1 fraudulently with the connivance of his sons relatives and family members by taking advantage of the illiteracy, old age, deafness and weak eyesight of the principle-plaintiff under misrepresentation with assurance to withdraw the amount of her husband from bank, without giving any consideration got executed from her the aforesaid deeds in favour of his family members. It is specifically stated that the consideration mentioned in the aforesaid sale deeds was neither received by the principle plaintiff nor the respondent No. 1 or his family members were in capacity to pay the same. It is also stated that Bhu Adhikar and Rin Pustikas of the aforesaid lands are still with her. On the strength of the aforesaid fraudulent documents respondents with the connivance of the Revenue Officers got the aforesaid land mutated in their respective names and thereby the principal plaintiff has been defrauded.
7. Soon after having the knowledge of the aforesaid cheating she reported the matter to the authorities in writing and also gave the notice dated 6.1.1992 to the respondent No. 1 to 4. They replied the same by mentioning the wrong facts on which the principle plaintiff in her life time filed the impugned suit on dated 22.1.1992 declaring the aforesaid all sale deeds, Karandanama and mutation to be ab initio void and also for perpetual injunction to protect her possession in respect of the aforesaid property.
8. Subsequent to filing the suit principle plaintiff died on 24.8.1993. Thereafter on the strength of her registered will dated 22.1.1992 her sons Harish Chandra and Gotiram the appellants came on record at her place as plaintiffs and also amended the plaint in view of the aforesaid will to prosecute the suit.
9. The respondent No. 1 to 5 filed their written statements on dated 15.7.1996, subsequent to death of the principal plaintiff. In such written statements except the initial pleadings of para 1 pleaded by the principle plaintiff all other averments of the plaint regarding fraudulent transaction of the aforesaid sale deeds, Karandanama and mutation are denied. The execution of the will by the deceased plaintiff with her free will in favour of the appellants is also denied. As per further averments such sale deeds and documents are executed voluntarily and in the healthy condition by the deceased plaintiff after receiving the due consideration mentioned in the respective documents. The present appellants got executed the will in their favour fraudulently and the impugned suit was also instituted by them through the deceased -plaintiff under the wrong premises. Nanhi Bai, the daughter of the principal plaintiff while the sister of the appellants and respondent No. 1 is also necessary party in the suit, in her absence the suit is not tenable. In such premises, the prayer for dismissal of the suit is made.
10. In the written statement of the respondent No. 6 the State of M.P. (appears to be formal party). The averments of the plaint are denied. In the lack of any notice under Section 80 of the CPC the suit against it is not tenable. The suit is not filed on proper court fee and prayed for dismissal of the same by claiming Rs. 3000 as compensatory cost.
11. In view of the pleading of the parties as many as ten issues were framed on which the evidence adduced by the respective parties was recorded. On appreciation of the same, the suit was dismissed by holding that the aforesaid sale deeds and other documents were duty executed by the deceased-principle plaintiff in favour of respective respondents after receiving the consideration and the alleged will set up by the appellants did not give any right to them in the disputed property. Being dis-satisfied with dismissal of the suit the appellants have come forward with this appeal.
12. Shri M.L. Jaiswal, learned Sr. Adv, assisted by Ku. Annapurna Sharma learned appearing counsel for the appellants assailed the impugned judgment of the trial court saying that it is unrebutted fact on record that the deceased-plaintiff being 90 years old, illiterate widow was suffering from deafness with weak eyesights. In such premises, he argued that alleged sale deeds and Karandanama got executed from her by the respondents fraudulently and without giving any consideration to her. So far her old age, illiteracy deafness and weak eyesight are concerned by referring the initial para 1 of the plaint he said that the same has not been denied by any of the respondent No. 1 to 5 in their written statements. Thus, it being admission is binding against them. As per existing law, if the documents were got executed by the respondents in their favour from illiterate old aged widow, then they were duty bound to prove that the same were executed by the principal plaintiff after having knowledge of its averments. They were also duty bound to prove that the consideration was duly paid to the deceased principal plaintiff but the respondents failed to prove the same. In such circumstances, it was said that without going on any other merits the impugned decree deserves to be set aside mere on this ground by decreeing the suit. He further said that in the age of 90 years the deceased-principle plaintiff was not in need of any money. She had sufficient source of her livelihood from her landed property, then what was the necessity to sell the lands. So firstly the respondents had to prove the necessity of the sum to the deceased-principle plaintiff secondly they were are also bound to prove their source of money from where they got it to pay the consideration to the principal-plaintiff. It is apparent on record that three sale deeds were got executed on 14.11.1991 at about 9 o'clock in the night at the residence where as alleged the sum of consideration was paid to the principle plaintiff, then where she kept the same in the village at night as it was not the small amount. All such questions are unanswered in the record which ought to have been answered by the respondents. In the lack of such evidence there is sufficient circumstance to draw the inference against the respondents that they defrauded the principal plaintiff and got executed the aforesaid deeds in their favour without consideration on which they also got mutated the land in their names. He further argued that soon after having the knowledge of such fraud she reported the matter to the Collector, Superintendent of Police and even on holding the Lok Adalat in the village to it also but of no avail on which she gave a notice to the respondents in this regard. The same was replied without giving any proper explanation of the aforesaid questions, on which she herself filed the suit. Unfortunately after filing the suit she died. Thus her statement could not be recorded in the case but her aforesaid pleadings are admissible and relevant for appropriate consideration under Section 32 (7) of the Evidence Act. So far appellants rights are concerned, he said that the principal plaintiff executed her last will in their favour on dated 22.1.1991 whereby the alleged property was given to them. The same has been proved by reliable and admissible evidence. In such premises by placing his reliance on some reported decision, he prayed for decreeing the suit by setting aside the impugned judgment and decree by allowing this appeal.
13. On the other hand Shri Anil Khare and Shri Vikram Shrivastava appearing counsel for the respondent No. 1, 4 and 5 by justifying the impugned judgment and decree said that the same is based on proper appreciation of the evidence and are in conformity with law, the same does not require any interference at this stage. By referring the averments of the aforesaid deed, he said that the principal plaintiff while residing with the appellant No. 2 Gotiram executed the same after receiving the consideration mentioned in the respective document. There is no circumstance to draw any inference that the same were executed by her without receiving the consideration or respondents got executed in their favour by committing any fraud or misrepresentation with the principal plaintiff. The principal plaintiff and the appellants were duty bound to prove the alleged fraud committed by the respondents, otherwise it could not be inferred that any fraud was committed by them as the sale deeds were registered by the Sub Registrar after verification of their averments from the principal plaintiff. As per his endorsement the consideration mentioned in such documents was already received by her. Under the law in view of the provision of presumption such endorsement is admissible. The Karandanama, on which strength the sale deed dated 22.11.1991 was executed has also been proved. It's consideration was also paid to the principal plaintiff by respondent No. 1. In such circumstances there was no burden on the respondents to prove that such documents were got executed in their favour after giving the mentioned consideration. They were not in dominating position. On the contrary, the appellants were in dominating position with the principal-plaintiff. Under such premises, in view of Section 111 of the Evidence Act the appellants could not discharge their burden to prove that the consideration was not paid. There is no other circumstances to draw the inference contrary to the registered documents for their quashment by decreeing the suit. With these submissions, by placing reliance on some reported decisions he prayed for dismissal of the appeal.
14. Having heard, Learned Counsel, after examining the record and perusing the impugned judgment, I am of the considered view that the trial court has committed grave error in dismissing the suit of the appellants filed by the principal -plaintiff. Before proceeding further, I would like to reproduce here the para 1 of the aforesaid plaint which was initially pleaded by the principle-plaintiff filing the suit. The same is read as under : ;
;g fd oknh ,d 90 o"khZ; o`+) o vui< fo/kok gS ftldh ns[kus dh vkSj lquus dh {kerk cgqr detksj gks xbZ gS A Subsequent to filing the suit the principle plaintiff died on 24.8.1993 and on the strength of her alleged last will dated 22.1.1992 the appellants came up on record at her place and they pleaded some additional pleadings in this para but on going through the written statements of the respondent No. 1 to 5, it is apparent that the aforesaid initial pleadings stated by the principle plaintiff regarding her age of 90 years, illiteracy deafness and weak eyesight are not denied in the written statement. In such premises, in view of the provision of order 8 Rule 5 of the CPC, such pleadings shall be deemed to be admitted by the respondents. Therefore, it is held that the principle plaintiff being illiterate widow, aged 90 years was suffering with deafness and weak eyesight.
15. It is undisputed fact on record that she had three sons the appellants and the respondent No. 1. All were residing separately in her life time. Each of them had their independent land with them and the principal plaintiff was not residing permanently with any of the sons but on dated 14.11.1991 she was at the residence of the appellant No. 2 Gotiram. The respondent No. 1 is also the resident of the same village, residing on a short distance from the house of Gotiram. The aforesaid four original sale deeds are exhibited on record as Ex. D/1 to D/4 while their certified copies filed by the principal plaintiff were marked as Ex. P/5 to Ex. P/8. As per averments of the sale deeds the mentioned consideration was taken earlier. The same was not paid in presence of the Sub Registrar. The same are revealed from the endorsement made by the Sub Registrar on such documents. Thus, it is revealed that at the time of execution of any of the aforesaid sale deeds the mentioned consideration was not paid to the principal plaintiff. Out of the aforesaid sale deeds Ex. D/1 to D/3 conferring the transfer in favour of the respondent No. 2, 3, and 4 were executed by the deceased - plaintiff on commission at village Sagoni on 14.11.1991 at about 9 o'clock in the night while other sale deed Ex. D/4 conferring the right in favour of the respondent No. 5 was executed on 23.11.1991 in the office of the Sub Registrar by respondent No. 1 on the strength of Karandanama, Ex. P/10 executed by the principal plaintiff in his favour on 19.11.1991. It appears that such Karandanama was got registered with Sub Registrar on 19.11.1991 in his office, as there is no endorsement on it regarding its execution on commission. The sale deeds Ex. D/1 to D/3 and Karandanama P/10 are executed with the thumb impression of the principal-plaintiff. It further shows that the principal plaintiff was illiterate woman that is why she used to put her thumb impression instead to make signature. It is apparent that the Ex. D/1 to D/3 sale deeds dated 14.11.1991 were executed on commission in the night at the village of the principal plaintiff and the respondents. On the other hand Karandanam (power of attorney) was executed in the office of the Sub Registrar on 19.11.1991. It shows that the principal plaintiff was in a position to go the office of the Registrar, then what was the necessity to call the Sub Registrar at the residence for executing the sale deed, Ex. D/1 to D/3. I have not found any satisfactory circumstance or explanation on behalf of the respondents in this regard. I have found one more circumstance on record that all the original sale deeds, Ex. D/1 to D/4 were filed on record by the respondents but the respondent No. 1 has not filed the original Karandanama dated 19.11.1991 although its certified copy, Ex. P/10 was filed by the principle plaintiff on record. It appears that in order to justify the execution of sale deed, Ex. D/1 to D/3 (i.e. P/6 to P/8 also) on commission and to conceal the circumstance that the principal plaintiff was in a position to go the Registrar's office, such original Karandanama was not filed The sale deeds, Ex. D/1 to D/3 (i.e. P/6 to P/8) were got executed on commission while the Karandanama, (Ex. P/10) was executed by the principal plaintiff herself in the Registrar office on 19.11.1991. Why the sale deed, Ex. D/4 got executed through attorney on dated 22.11.1991. On 19.11.1991 instead to execute the Karandanama, the principal plaintiff could have executed the sale deed (Ex. D/4) in favour of respondent No. 5 on such date if the transaction was bonafide. All such questions are unanswered and not explained by the respondents. Undisputedly, the appellants and the respondent No. 1 are the real brothers and the respondent No. 2 is the wife of the respondent No. 1 while the respondent No. 3 to 5 are sons of the respondent No. 1. Accordingly they belong to the same family and in the absence of the aforesaid executed sale deeds the alleged property was to be inherited by all the sons and daughter of the principal plaintiff after her demise by way of the natural succession.
16. At this juncture the facts stated by the principal plaintiff in the plaint and other documents by which she asserted her rights are very relevant and by virtue of Section 32 (7) of the Evidence Act the same could be considered to adjudicate the disputed questions involved in this appeal. Such view is fully fortified by the decision of by the Division Bench of Patna High Court in the matter of Satyadeo Prasad v. Smt. Chanderjoti Debi and Ors. in which it was held as under:
32. The written statement filed by Jagarnath (Ext. 6/a) stands on a much stronger footing. Jagarnath died before the institution of the present suit. His above statements, therefore, would be admissible under S 32 (7) of the Evidence Act. Section 32 (7) lays down that "Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured, without an amount of delay or expense which, under the circumstances of the case, appears to be court, unreasonable, are themselves, relevant facts in the following cases:...(7) When the statement is contained in any deed, will or other document which relates to any such transaction as is mentioned in Section 13, Clause (a)". Section 13 (a) states that where the question is as to the existence of any right or custom, any transaction by which the right or custom in question was created, claimed, modified, recognized, asserted or denied, or which was inconsistent with its existence, is relevant. The question in the instant case is whether Jagarnath Ram was the owner of the pucca house at Bhatpar Rani and the business of the rice mill which was the carried on in that house. The other question that arises in this case to be considered is as to whether he was the owner of certain other properties. Those properties were sought to be divided in the previous suit between Mahadeo and his sons, including Hardeo. In that case, by this written statements, Jagarnath asserted that the pucca house as well as the business of the rice mill and the other property belonged to him and that his wife Shyama Devi, was a benamider for him. It is thus clear that Jagarnath, the husband of the plaintiff asserted his right in his written statement and that is relevant under Section 13 (a) of the Evidence Act and, Jagarnath being dead, it is relevant also under Section 32 (7) of the Evidence Act. The above written statement is, therefore, legally admissible in evidence. The above view gains supported from a Bench decision ofThis Court in Chandra Choor Deo v. Bibhuti Bhushan AIR 1945 Pat. 211.
17. In view of the aforesaid in the present case the principal plaintiff asserted her rights relating to the disputed land in the plaint, thus, such averment of pleading by virtue of Section 32 (7) of the Evidence Act are relevant and admissible. The same could be considered.
18. In the light of the above mentioned circumstancesThis Court has to consider the bonafide and genuineness of the aforesaid all sale transactions.
19. It has already been revealed that the principal plaintiff being 90 years old illiterate widow was having deafness and weak eyesight. As per sale deeds , Ex. D/1 to D/4, the mentioned consideration of any sale deed was not paid in presence of the Registrar and the date time and place of such payment are also not mentioned in the sale deeds. In view of the aforesaid illiteracy and the weak physical condition of the principal plaintiff there was heavy burden on the respondents to prove that the aforesaid sale deeds were got executed from her after paying due consideration mentioned in such documents, as they being purchaser are the beneficiaries of such documents. In such premises they were also bound to prove that for what purpose the principal plaintiff was in need of the money in her later age alongwith their sources from where they got the sum and the mode and manner with particulars that on which date and in whose presence the same was paid to principal plaintiff. In the absence of such evidence the questionable sale deeds, Ex. D/1 to D/4 (P/5 to P/8) could not be held to be a bonafide transaction. Such question is answered by the Apex Court in the matter of Mst. Sethani v. Bhana reported in AIR 1993 SC 956 in which it was held as under:
4. We have heard Learned Counsel for the parties. The facts are so glaring, still the onus to prove the issue has been overemphasised. It is true that the initial onus to prove undue influence was on the plaintiff- appellant, but the onus, in the facts and circumstances of the case, was easily discharged. It is the respondent who had obtained the sale deed in his favour way back on 1-4-1963 by a registered sale deed, which saw the light at a late stage of the trial. From the certified copy thereof it was evident that no consideration passed at the time of the sale. Nobody from the registration office was examined to explain the sale. No evidence was led by the respondent to discharge the onus that the sale deed was executed under no undue influence, even though the vendor was old, blind, illiterate and tribal woman totally at the mercy of the respondent, with whom she was living till her death. The parties were so situated that Bhanarespondent was in a position to dominate the will of Putlibai and was in a position to obtain any unfair advantage over her. It is also in evidence that Putlibai was dependent on the respondent. The trial Court had given cogent reasons to come to the finding that the sale deed was vitiated on account of the condition in which Putlibai was put due to her relationship with Bhana-respondent, as well as the manner and nature of the transaction. The High Court, in our view, erroneously took the view that the plaintiff-appellant was unable to discharge the onus that the transaction was as a result of undue influence. There was no cogent reason to come to that view and more so to upset the well reasoned finding recorded by the trial Court. Therefore, opting for the view of the trial Court, we reverse the finding that the sale deed was executed by the mother of the appellant under undue influence of the respondent who took advantage of the helplessness of the old widow of his brother. The advantage thus obtained by him must thus be returned.
20. In view of the aforesaid dictum of the Apex Court the respondents being beneficiaries of the aforesaid sale deeds, looking to their relationship with the principal plaintiff, were bound to prove with all probabilities that the same were executed by the principal plaintiff after having satisfied with their averments and receiving the consideration mentioned in such documents. The respondents by examining the concerned Sub Registrar and adducing the other relevant evidence could have explained the circumstances that why three sale deeds were executed at village on commission in the night and why the Karandanama (Power of Attorney) was got executed on 19.1.1995 by bringing the principal plaintiff to the Registrar Office. Why the sale deed Ex. D/4 was not executed instead the Karandanama on such day and why Ex. D/4 was got registered on 22.1.1995, through respondent No. 1 on the strengh of Karandanama in favour of his minor son of aged ten years, the respondent No. 5. In the lack of such evidence and considering the physical position of principal plaintiff it could not be inferred the all the aforesaid sale transaction are bonafide genuine and with consideration.
21. Apart above such question was also answered by the Division Bench of Orissa High Court in the matter of Narayan Mishra and Ors. v. Champa Dibya (dead) and Ors. in which it was held as under:
10. ...
In the case of execution of a deed by a paradnashin or illiterate lady, the law protects her by demanding that the burden of proof shall in such cases rest not with those who attack, but with those who rely on it. It must be proved affirmatively and conclusively that the deed was not only executed by, but was explained to and really understood by, the grantor. Ordinarily, the Courts insist on proof that the lady had independent legal advice although this may be an absolute and invariable rule and there may be exceptions when the lady is shown to have business capacity and strength of will and the deed is shown to be in the circumstances not an unnatural disposition of her property. But the general rule is that save in such exceptional cases, the Court would demand affirmative proof on the subject of the lady's intelligent understanding and execution of a deed and would not readily hold this onus to have been discharged where it is not shown that the lady had any independent advice.
There is, of course, no doubt that as a matter of law if the appraisal of the evidence by trial Court suffers from a material irregularity or is based on inadmissible evidence or on a misreading of the evidence or on conjectures and surmises the Appellate Court is entitled to interfere with the finding of fact.
14. ...
There is, of course, no doubt that as a matter of law if the appraisal of the evidence by trial Court suffers from a material irregularity or is based on inadmissible evidence or on a misreading of the evidence or on conjectures and surmises the Appellate Court is entitled to interfere with the finding of fact....
The question as to whether Champa executed the three deeds voluntarily and with knowledge as to the contents thereof or as to whether the deeds had been got executed fraudulently by exercising undue influence on that illiterate lady who had no independent advice was a question of fact and for clear and cogent reasons, the trial Court had found that the contesting defendants have failed to establish that the deeds had been executed by Champa in the manner sought to be established by them."
22. On the other occasion Allahabad High Court has also answered this question in the matter of Santoo and Ors. v. Jagannath and Ors. in which it was held as under:
5. After considering the argument of the Learned Counsel, I am of the view that there is no illegality in the finding of the first Appellate Court that Sahabdin has not proved the sale deed in accordance with law. He has only stated that the sale deed bear his thumb mark, which statement cannot be believed. If a document is to be proved by illiterate person, it should be read over to him. Therefore, I find that there is no illegality in the order of the first Appellate Court that the sale deed has not been proved in accordance with law.
23. So far execution of the sale deed on dated 22.11.1991 by Krishna Kumar-respondent No. 1 on the strength of power of attorney dated 19.11.1995 and the payment of its consideration are concerned, it is apparent from such sale deed that it's consideration was not paid in presence of Sub Registrar and the original power of attorney on which strength the sale deeds got executed is neither produced nor proved on record. I have not found any evidence that subsequent to it's registration it's consideration was paid to the principal plaintiff in any manner. In such circumstances, such transaction appears to be suspicious and malafide and the same is not sustainable. This question was answered by the High Court of Punjab and Hariyana in the matter of Hans Raj (deceased) and Ors. v. Karmi D/o Labhu and Ors. in which it was held as under:
18. The learned trial Court had taken all these circumstances into consideration and it was thereafter that it had come to the conclusion that the general power of attorney Ex. D-2 dated December 21, 1973 was never executed by Smt. Karmi in favour of Mehar Singh and consequently the sale deed dated January 29, 1974 by Mehar Singh acting as attorney of Karmi in favour of his own sons Joginder Singh and Salwinder Singh, defendants Nos. 4 and 5 was totally without any authority and as such was illegal, bad and not binding upon the rights of the plaintiffs in any manner.
19. The very fact that Mehar Singh chose to sell the land in dispute in favour of his own sons also creates a suspicion with regard to the bona fide of the aforesaid transaction. No amount was shown to be paid in presence of the Sub-Registrar. It was claimed that Mehar Singh had already received this amount from the vendees and had even paid to Smt. Karmi. The facts speak for themselves. The intention to grab the property is writ large. By any stretch of imagination, defendants Nos. 4 and 5 cannot be treated to be bona fide transferees for consideration without notice.
24. On the other hand on behalf of the respondents Shri Anil Khare and Shri Vikram Shrivastava by referring Section 111 of the Evidence Act said that the principal plaintiff was in active confidence of the appellant No. 2 - Gotiram as she was residing with him, therefore, burden to prove the aforesaid transaction of sale to be fraudulent transactions was on the appellants in which they have failed, thus in such circumstances, it could not be said that the respondents have failed to discharge their burden to prove the bonafideness of transactions and payment of the consideration. The sale deeds being registered documents, the presumption regarding its genuineness are also in their favour. But such arguments of the respondents' counsel did not appeal me in the available circumstances, specially when uncontroverted pleadings regarding physical conditions and illiteracy of the principal -plaintiff is on record and the same is admissible and also binding against the respondent under Order 8 Rule 5 r/w Rule 10 of the CPC. It is settled proposition that the case pleaded by one party is not denied in pleading by the other party then such pleading of the farmer party should be deemed to be admitted by the other side.
25. The case laws cited by the respondents are concerned the same are not helping to them because of the following reasons:
(A) In the matter of Smt. Hanshraji v. Yashodanand is concerned, the same was decided considering the circumstances that the appellant was claiming herself to be illiterate childless widow and seeking cancellation of the documents. In such premises by holding that she was employed in the Railway on compassionate ground on the death of her husband and there was nothing on record to show that she was suffering from ignorance, illiteracy or mental deficiency and on such count her case was not found to be proved. That is not the situation here as discussed above.
26. Other case in the matter of Satya Narain. Smt. Nanki Devi is concerned, the same is based on a promissory note executed by respondent Narain Devi in favour of Satya Narain and the same was decided considering the circumstance that the respondent was literate woman with considerable intellectual capacity of dealing with other persons. In such premises, it was held that the presumption of active confidence of the appellant on the respondent was not adjoining and in such premises the appeal was allowed. But here in the case at hand the principal plaintiff was neither literate nor having considerable intellectual capacity of dealing with other persons, hence the cited case is not helping to the respondents.
27. Apart the above on going through the depositions of the witnesses examined on behalf of the respondents, I have not found the answers of the aforesaid questions. Such evidence in view of the inter se inconsistencies between the respondents witnesses do not appear to be reliable. The sale deeds, Ex. D/1 to D/4 appear to be suspicious on other grounds also as held in the foregoing paragraphs. The alleged purchasers of one sale deed have become the attesting witnesses for other sale deed even in some sale deeds the respondent No. 1 himself has signed as witness. On the other hand the appellants have proved their case alongwith the case initially pleaded by the principal plaintiff with cogent, reliable and admissible evidence. But the trial court has not appreciated the evidence in accordance with the settled propositions of law as laid down by the Apex Court in the above mentioned cases. Thus, in such premises the impugned judgment and decree are not sustainable, hence it is held that the aforesaid all the sale deeds alongwith Karanadanama got executed by the respondents in their favour fraudulently and also without paying the consideration mentioned in such deeds, so such document did not confer any right or title in respect of the disputed property. Thus, the mutations which was carried out on the basis of such sale deeds in favour of the respondent No. 2 to 5 respectively in the revenue record at the place of principle plaintiff are also not sustainable. In such premises all the aforesaid four sale deeds Ex. D/1 to D/4 (Ex. P/5 to Ex. P/8) and the Karandanama, Ex. P/10 are quashed and set aside.
28. Coming to the question of will Ex. P/1 as alleged executed by the principle plaintiff in her life time on dated 22.1.1992 in favour of the appellants is concerned, firstly on account of old age and the illiteracy of principal-plaintiff in the lack of any evidence that the same was executed by her voluntarily and in healthy condition, it could not be considered to be a bonafide and genuine document. Infact the execution of such document appears to be on the same footing, on which the aforesaid sale deeds were got executed by the respondents. In the available circumstances it appears that the respondent No. 1 being real brother of the appellants in old age of their mother the principle plaintiff tried to deprive the appellants from the property of the mother after her demise by getting executed the aforesaid sale deeds in favour of his wife and sons, the respondent No. 2 to 5 and subsequent to it, on coming to know about aforesaid fraud of the respondents the present appellants by taking advantage of the illiteracy and other physical weakness of the principal-plaintiff got executed the aforesaid will in their favour from her with intention to defeat the interest of the respondent No. 1 and his family members in such property. Although, in support of the will the attesting witness Bablu (PW-3) and Durga Prasad (PW-2) and it's scriber Jageshwar Khare (PW-6), the typist are examined but in above mentioned circumstances their testimonies do not appear to be reliable. I have not found any circumstance in the evidence led by the appellants showing that such will was executed by the principal plaintiff after having satisfied regarding its averments. Therefore, it is held that the appellants have failed to prove the genuineness and the execution of the will, the same did not give any right to the appellants exclusively in the property of the principal plaintiff.
29. In the aforesaid premises it is held that neither the present appellants nor the respondent No. 2 to 5 have acquired any right or title in the disputed property on the strength of the aforesaid sale deeds, Karandanama, mutation or the will.
30. On perusing the prayer clause of the plaint the principal plaintiff prayed for declaring the aforesaid sale deeds to be ab initio void with perpetual injunction to protect her possession with any other reliefs which court finds fit to grant in her favour in the circumstances. Such prayer has never amended by the present appellants. Thus, considering such prayer of the principal plaintiff after setting aside the aforesaid all the sale deeds, Ex. D/1 to D/4, (Ex. P/5 to P/8), Karandanama, Ex. P/10, it is held that on demise of the principal plaintiff all her natural heirs and legal representatives have inherited the disputed property as per provision of Hindu Succession Act and under the Personal Law and they being co-owners of the aforesaid land their possession over the land would be deemed accordingly.
31. Under the aforesaid premises, by allowing this appeal the impugned judgment and decree are hereby set aside and the sale deeds Ex. D/1 to D/4, (Ex. P/5 to P/8) and Karandanama, Ex. P/10 are declared to be ab initio void documents. The mutation proceedings carried out on the strength of aforesaid sale deeds are also hereby set aside and quashed. In such premises, it is held that such documents do not give any right to the respondent No. 1 to 5 and the Will, Ex. P/1 has also not given any right in the property to the appellants. It is further held that after demise of the principal plaintiff - Smt. Maharani all her natural heirs and legal representatives including the appellants the respondent No. 1 and 7 have inherited the disputed property as per provision of Hindu Succession Act and as per Hindu Personal Law and they shall be at liberty to get their share in it in accordance with law. The respondent No. 1 to 5 by bearing their costs of this litigation shall bear the cost of appellants throughout. The Advocate fees is quantified as per schedule. The decree be drawn up accordingly.
32. The appeal is allowed as indicated above.